No.

13-8435
In The

Supreme Court of the United States

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DAVID S. ZINK, et al.,

Petitioners, v.

GEORGE A. LOMBARDI, Director, Missouri Department of Corrections,

Respondent.
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ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
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BRIEF OF AMICUS CURIAE THE ETHICS BUREAU AT YALE IN SUPPORT OF PETITIONERS

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Lawrence J. Fox Counsel of Record DRINKER BIDDLE & REATH LLP One Logan Square, Suite 2000 Philadelphia, Pennsylvania 19103 (215) 988-2700 lawrence.fox@dbr.com Counsel for Amicus Curiae Dated: February 27, 2014

THE LEX GROUPDC 1825 K Street, N.W. Suite 103 Washington, D.C. 20006
(202) 955-0001 (800) 856-4419 Fax: (202) 955-0022 www.thelexgroup.com

i ***CAPITAL CASE*** Question Presented Whether interpreting Baze v. Rees, 553 U.S. 35 (2008), to require death row inmates lawyers to offer an alternative means of execution in order to plead that the present method violates the Eighth Amendment forces these lawyers to breach multiple ethical duties to their clients.

ii Table of Contents Page Question Presented ..................................................... i Table of Contents ........................................................ ii Table of Authorities ................................................... iii Interest of Amicus Curiae .......................................... 1 Summary of Argument ................................................ 1 Argument ..................................................................... 2 I. Counsel Cannot Articulate an Alternative Means of Execution Unless the Client Directs the Lawyer to Do So ..................................... 2 Requiring Counsel to Articulate a Means of Execution Creates a Conflict of Interest ................................. 5 The States Interpretation of Baze Forces Defense Lawyers to Breach Their Duties of Competent Representation ....................................... 9

II.

III.

Conclusion.................................................................. 12

iii Table of Authorities Page(s) Cases Attorney Grievance Commn of Md. v. Sperling, 69 A.3d 478 (Md. 2013) .................................... 3 Baze v. Rees, 553 U.S. 35 (2008) .................................. passim Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ........................................ 11 Glasser v. United States, 315 U.S. 60 (1942) ............................................ 6 Smiley v. Dir., Office of Workers Comp. Programs, 984 F.2d 278 (9th Cir. 1993) ............................ 7 Stewart v. LaGrand, 526 U.S. 115 (1999) .......................................... 4 Constitutional Provisions U.S. CONST. amend. VI ........................................... 1, 6 U.S. CONST. amend. VIII .................................. passim Statutes Ariz. Rev. Stat. Ann. 13-757(B) ............................... 4 Cal. Penal Code 3604 ........................................... 4, 5

iv Rules Mo. R. of Profl Conduct 4-1.1 ........................ 9, 10, 12 Mo. R. of Profl Conduct 4-1.2(a) ................................ 3 Mo. R. of Profl Conduct 4-1.3 ................................ 4, 8 Mo. R. of Profl Conduct 4-1.7 ................................ 6, 7 Mo. R. of Profl Conduct 4-1.7(a)(2) ............................ 6 Model R. of Profl Conduct 1.2 ................................ 2, 4 Model R. of Profl Conduct 1.2(a) ............................... 3 Model R. of Profl Conduct 1.3 .................................... 4 Model R. of Profl Conduct 1.7 .................................... 5 Model R. of Profl Conduct 1.7(a)(2) ........................... 5 Sup. Ct. R. 37.2 ........................................................... 1 Other Authorities Restatement (Third) of the Law Governing Lawyers 16(1)-(2) (2000) ........................................... 9 Restatement (Third) of the Law Governing Lawyers, 16A cmt. c (2000) ...................................... 2

1 Interest of Amicus Curiae1 The Ethics Bureau at Yale, a clinic composed of fourteen law school students supervised by an experienced practicing lawyer and lecturer, drafts amicus briefs in cases concerning professional responsibility; assists defense counsel with ineffective assistance of counsel claims relating to professional responsibility; and offers ethics advice and counsel on a pro bono basis to not-for-profit legal service providers, courts, and law schools. The Ethics Bureau respectfully submits this brief as amicus curiae for two reasons. First, it has an abiding interest in ensuring that the Sixth Amendment and the Model Rules of Professional Conduct preserve the right of every criminal defendant to conflict-free, competent representation that pursues client-defined objectives. Second, it believes that when courts ignore ethical violations affecting the representation of criminal defendants, they not only damage the integrity of the proceedings at issue, but also undermine public confidence in the legal system. Summary of Argument The Eighth Circuit interpreted Baze v. Rees, 553 U.S. 35 (2008), to require a death row inmate to
to Rule 37.2 of the Rules of this Court, Petitioners and Respondents have consented to the filing of this brief. The letters granting consent are filed herewith. This brief was not written in whole or in part by counsel for any party, and no person or entity other than Amicus and its counsel has made a monetary contribution to the preparation and submission of this brief.
1Pursuant

2 suggest and therefore concede as constitutional an alternative means of execution in a pleading that alleges an Eighth Amendment violation in the States proposed method of execution. The Ethics Bureau at Yale presents this brief to explain the reasons why the Eighth Circuits misguided interpretation of Baze should be rejected because, inter alia, it would compel defense lawyers to breach their ethical duties to their clients. With these professional duties in mind, Amicus urges the Court not to require a death row inmates lawyer to offer an alternative method of execution in order to conclude that the defendant has properly pled an Eighth Amendment claim against one method of execution. Instead, Amicus urges the Court to acknowledge that, given the lawyers ethical duties, the burden to offer any alternative method properly rests with the State, which can meet the burden without the States lawyers violating their ethical obligations. Argument I. Counsel Cannot Articulate an Alternative Means of Execution Unless the Client Directs the Lawyer to Do So

In every lawyer-client relationship, the client is the ultimate decision-maker; the lawyer acts as the agent charged with fulfilling the clients expressed wishes. The client, not the lawyer, determines the goals to be pursued. Restatement (Third) of the Law Governing Lawyers, 16A cmt. c (2000). Rule 1.2 of the Missouri Rules of Professional Conduct plainly requires a lawyer to abide by [his]

3 clients decisions concerning the objectives of the representation. See Missouri Rules of Profl Conduct R. 4-1.2(a) (2008).2 Lawyers who violate this rule are subject to severe professional sanctions. See, e.g., Attorney Grievance Commn of Md. v. Sperling, 69 A.3d 478, 490 (Md. 2013) (lawyer subject to indefinite suspension from the practice of law because the attorney violated Rule 1.2(a) by failing to follow the clients instruction) (quotations and citations omitted). The Eighth Circuits interpretation of Baze specifically, its suggestion that a lawyer must propose an alternative means by which his client is to be executed in order to meet the pleading standard flies in the face of this professional requirement. It forces the lawyer to abandon the clients set objective for the representation and instead, to concede the constitutionality of another, untested method of execution in spite of the fact that no lawyer should be required, in the face of a method of execution that the client asserts is unconstitutional, to advocate for an alternative. As such, the Eighth Circuits interpretation puts lawyers representing death row inmates in a loselose situation when their clients have not conceded that there is any constitutional method of execution now that the method Missouri used in the past is no longer available. If the lawyer meets the Eighth Circuits understanding of the pleading standard by conceding
2

The Model Rules of Professional Conduct are identical to Missouris adopted Rules of Professional Conduct cited in this brief.

4 an alternative means for the State to execute his client, he has violated Rule 1.2 by contradicting his clients decision-making authority. And if the lawyer wants to avoid violating Rule 1.2 by not providing an alternative means of execution in the pleading, he has arguably violated Rule 1.3s requirement of diligence by refusing to comply with the alleged pleading requirement. See Missouri Rules of Profl Conduct R. 4-1.3 (2007). This catch-22 will arise every time a death row inmate opts to challenge the method by which the State proposes to take his life. Refusal to engage in the macabre task of actively supporting an alternative method of execution protects an important right. As this Court has held, [b]y declaring his method of execution, picking lethal gas over the States default form of execution lethal injection [a death row inmate] has waived any objection he might have to it. Stewart v. LaGrand, 526 U.S. 115, 119 (1999) (emphasis added). Death row inmates and their lawyers therefore are forced to abandon an important Eighth Amendment argument if they are required to affirmatively choose a method of execution. In addition, some state statutory provisions regarding the method of imposing a death sentence contemplate the likely situation that death row inmates may prefer not to choose the method of their own execution. These statutes provide a default method of execution when the opportunity to choose an execution method is declined by the inmate, see Ariz. Rev. Stat. Ann. 13-757(B) (2013); Cal. Penal Code 3604 (West 2014) (demonstrating

5 that states recognize the possibility that death row inmates will fail[] to choose, Cal. Penal Code 3604 let alone advocate for an alternative method of execution). These choice-based state statutes regarding the method of execution also recognize the state as an appropriate alternative decision maker. The default method of execution provided in states where death row inmates are offered a choice between means has been pre-determined by a far more appropriate decision-maker: the state legislature itself. These state penal codes already reflect the sensible proposition that when the inmate cannot or should not decide, the responsibility to suggest an alternative method of execution should lie solely in the hands of the State. II. Requiring Counsel to Articulate a Means of Execution Creates a Conflict of Interest

Rule 1.7, the concurrent conflict rule, likewise weighs against an interpretation of Baze that would burden a plaintiff with articulating an alternative means of execution when making this type of Eighth Amendment claim. This is because a lawyer representing a death row client will invariably face a conflict of interest if required to suggest a method by which the State might execute his client, in effect putting the lawyer in the position of representing the State. Rule 1.7(a)(2) prohibits a lawyer from engaging in a representation if there is a significant

6 risk that the representation . . . will be materially limited . . . by the lawyers responsibilities to . . . a third person or by a personal interest of the lawyer. Missouri Rules of Profl Conduct R. 4-1.7(a)(2) (2007). Usually the rule implicates conflicts that are extrinsic to the representation: perhaps the lawyer represents the opposing party in another matter, or has an independent personal familial or financial incentive to achieve an outcome that may be unfavorable to the clients interests. See generally Missouri Rules of Profl Conduct R. 4-1.7 (2007). Here, the conflict that would necessarily follow from the Eighth Circuits interpretation of Baze is intrinsic to the representation. It would require the lawyer to make an argument that cuts against the very goals of the clients representation, namely, preventing the clients execution. The Eighth Circuits interpretation of Baze not only ignores that client-defined objective, but substitutes advocacy on behalf of the death row inmate for a result sought by the State: a concession that an alternative method of execution is constitutional. And this cognizable, even palpable conflict, poses all the dangers inherent to the more traditional, extrinsic conflicts of interest. This Court has repeatedly recognized that the Sixth Amendment right to the effective assistance of counsel includes the right to a representation free from conflicts of interest. See Glasser v. United States, 315 U.S. 60, 70 (1942). [T]he rule against representing adverse interests [of present clients] was designed to prevent a . . . practitioner from having to choose between conflicting duties, or attempting to reconcile conflicting interests rather

7 than enforcing a clients rights to the fullest extent. Smiley v. Dir., Office of Workers Comp. Programs, 984 F.2d 278, 282 (9th Cir. 1993). The Eighth Circuits interpretation of Baze at issue here would place a lawyer under a severe and darkly ironic conflict: the principal goal of any lawyer representing a death row client is to prevent his clients execution; yet the Eighth Circuits interpretation of the pleading rule would require the lawyer to actively advocate for a particular means of achieving his clients death in the course of attempting to avert it. Placed in such a position, no lawyer could effectively argue both for and against his clients execution. Moreover, requiring him to argue in favor of it is decidedly unjust on its own terms, prohibiting him from enforcing [his] clients rights or pursuing his clients wishes to the fullest extent, Smiley, 984 F.2d at 282. Generally, the Rules address conflicts of interest by requiring the lawyer to remove himself from the representation. See Missouri Rules of Profl Conduct R. 4-1.7, cmts. [2]-[4] (2007). Under the circumstances presented by this case, however, such a remedy is both impractical and illogical. Removal, while attempting to solve the conflict, carries its own burdens because a lawyer engaged in such a representation will be far more familiar with the case, its facts and procedural posture, and the clients particular interests and goals than any potential replacement could be. The illogic of replacement as a remedy is likewise transparent: a replacement lawyer, on assuming the representation, would inherit an identical conflict.

8 She, too, would face the prospect of advocating a means of execution while laboring to prevent one. Thus the traditional remedy is without remedial effect. Instead, only an interpretation of Baze that does not impose this perverse pleading burden could effectively obviate such a conflict. Finally, Amicus recognizes that some might argue that Petitioners cannot claim a conflict because Petitioners chose to bring this suit. Even if the holding in Baze were clear on this point, Petitioners certainly must be free to argue for a change in the law, explaining all the reasons (including the ethical reasons) why the burden to offer an alternative means of execution should be on the State. Amicus, moreover, is of the view that this argument ignores the stark realities of death row litigation. The avenues to relief are few and arduous, and the diligent lawyer in order to fulfill his dedication to his client must seize any possible source of relief, even if only provisional or temporary, when the stakes are so high and the result so final. Indeed, a death row lawyer would breach his duty of diligence should he fail to pursue a claim that might secure his clients desired outcome. See Missouri Rules of Profl Conduct R. 41.3 (2007). Failing to find relief along one avenue, he must move to the next. This suit proves by its mere existence that a means of execution claim does not represent a frivolous strategy by which to attempt to avoid execution altogether; if the Court should accept this case and rule in Petitioners favor, then Petitioners will have successfully avoided execution, at least in

9 the short term. To deny a petitioners right to pursue his legal objectives, by whatever means available, would be to deny both the vitality and constitutionality of the appeals process and the very human response that must attend a sentence of death. III. The Eighth Circuits Interpretation of Baze Forces Defense Lawyers to Breach Their Duties of Competent Representation

The duty of competence further weighs against the Eighth Circuits interpretation of Baze. Rule 1.1 requires that lawyers provide competent representation, acting with such knowledge, skill, thoroughness and preparation [as is] reasonably necessary for the representation. Missouri Rules of Profl Conduct R. 4-1.1 (2007). The Restatement (Third) of the Law Governing Lawyers reaffirms these points, instructing every lawyer to proceed in a manner reasonably calculated to advance a clients lawful objectives, as defined by the client after consultation, and to act with reasonable competence and diligence. Restatement (Third) of Law Governing Lawyers 16(1)-(2) (2000). If the Court were to adopt the Eighth Circuits interpretation of Baze, requiring a lawyer to propose a specific alternative method of execution when pleading to the cruel and unusual nature of one method of execution, that requirement would force lawyers to violate their duties of competent representation. Proposing such an alternative requires detailed information that the defense

10 lawyer necessarily lacks at the pleading stage and is unlikely to ever be able to acquire. If a defense lawyer lacks the knowledge to plead his clients case then he will necessarily breach his legally binding duty of competence. Missouri Rules of Profl Conduct R. 4-1.1 (2007). As such, the Eighth Circuits requirement would render it impossible for lawyers to competently plead to the cruel and unusual nature of the then-present method of execution. The Baze Court opined that in order to be constitutional, any alternative method of execution must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. Baze v. Rees, 553 U.S. 35, 37 (2008). With that standard in mind, this case arose because the logistics of procuring pharmaceuticals to carry out lethal injections have become quite complex. As a result, Missouri has been forced to identify alternative methods of execution since its former methods are no longer available. But if the Court were to place the burden to plead a specific alternative method of execution on the defense lawyers, then they would be forced to address not only the medical risks of an alternative method, but also the logistics by which the State could procure, transport, and administer it. It is entirely unreasonable to ever place such a burden on the defense at any time, but especially at the pleading stage. It would be impossible, for example, for the defense lawyer to know which drugs are available to the State and from whom it could purchase those drugs. Only because of a media leak did information

11 become available at the pleading stage in the present case about one pharmacy the State uses to produce the potentially unconstitutional drugs and the doctor who prescribes them. No information, however, is available to Petitioners or their lawyers about other drugs the State might consider using or about the range of drugs the pharmacy or any available pharmacy could produce if asked to do so. The alternative options depend on a complicated calculus that includes the combination of chemical availability, the pharmacys manufacturing capabilities, and research into various drugs. As such, before obtaining discovery, there would be no information available to a death row inmates lawyer to propose an alternative method that is both feasible and readily implemented. As a result, to place the burden of advocating the constitutional logistics of a method of execution on the defense counsel is simply absurd. Moreover, the Eighth Circuits interpretation of the pleading standard would force the defense to investigate which drugs are likely to significantly reduce a substantial risk of severe pain. Baze, 553 U.S. at 37. Once again, it is unclear how the defense lawyer might suggest such an alternative when the lawyer, at the pleading stage, has no information about which other drugs are available to the State. Pleading standards are meant to filter out plaintiffs with largely groundless claim[s] and prevent them from wasting judicial resources while protecting the rights of plausible claims to be brought. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). Too high a pleading standard would force

12 a plaintiff to plead facts that it cannot know without any discovery, and will prevent meritorious causes of action regarding the Eighth Amendment implications of any given method of execution from ever getting to trial or even discovery. In this case, the cause of action concerns a core constitutional right. There is ample testimonial evidence here that the method the State intends to employ causes a substantial risk of severe pain. The Eighth Circuits proposed pleading standard, however, would render it nearly impossible for any claim to be brought against a State for using a cruel and unusual method of execution, since it would simultaneously require a defense lawyer to supply information the lawyer simply cannot possess at such an early stage of litigation. Moreover, such a standard would render it impossible for a defense lawyer to satisfy his duty of competent representation; if he cannot obtain the information necessary to bring a meritorious claim then he cannot act with such knowledge, skill, thoroughness and preparation as is reasonably necessary for the representation. Missouri Rules of Profl Conduct R 4-1.1 (2007). Such a strict standard would force lawyers to breach their legally binding ethical duties and would unconscionably preclude meritorious claims from being decided on the merits. Conclusion Petitioners sit on death row in Missouri. Missouri can no longer obtain from its European supplier the chemicals it needs to administer a lethal

13 injection. So Missouri has developed an alternative, the use of which Petitioners and their lawyers assert would constitute cruel and unusual punishment in violation of the Eighth Amendment. They seek to have that question adjudicated an adjudication that the State of Missouri should welcome, for it could not possibly have an interest in violating that important constitutional prohibition. Yet, according to the Eighth Circuit, in order to pursue this adjudication, Petitioners and their lawyers must identify, in the initial complaint and before any discovery occurs, an alternative to this flawed means of execution an alternative as to which they must concede constitutionality. This is an impossible task for an ethical lawyer. If the lawyer were to pursue the suggested course, he would be engaging in unethical conduct: ignoring his clients stated objective for the representation, laboring under a conflict of interest, and entering into scientific and logistical terrain about which he is incompetent. For this reason alone this Honorable Court should grant certiorari and declare that Baze does not require any such thing.

14 Respectfully submitted, LAWRENCE J. FOX Counsel of Record DRINKER BIDDLE & REATH LLP One Logan Square, Suite 2000 Philadelphia, Pennsylvania 19103 (215) 988-2700 lawrence.fox@dbr.com Counsel for Amicus Curiae